Pubdate: Mon, 24 Aug 1998
Source: Philadelphia Inquirer (PA)
Contact:  http://www.phillynews.com/
Author: Joseph A. Slobodzian INQUIRER STAFF WRITER

LAWYER SUES U.S. TO OVERTURN BAN ON MARIJUANA

Cited in the suit, which seeks to allow medicinal use, are personal stories
like the one of a Philadelphia AIDS patient and activist.

It's been said that nothing is so powerful as an idea whose time has come,
and lawyer Lawrence Elliott Hirsch may be right: That now is the hour to
sue to legalize the medical use of marijuana.

After all, it's been two years since Californians approved a ballot
question legalizing the medical use of marijuana to help patients suffering
from such illnesses as cancer, AIDS and glaucoma.

In the last month, state officials in Nevada and Washington state have
certified referendums for November's general election on legalizing
marijuana for medical use.

And in Camden County, Edward Forchion, an independent candidate for county
freeholder running on the "Legalize Marijuana" slate, has staged a
high-profile campaign that has gotten him charged with possession of a
controlled dangerous substance after he openly smoked a joint in both
Camden County Democratic headquarters and the office of U.S. Rep. Robert
Andrews (D., N.J.).

Smelling the winds of change, Hirsch said he decided that the time was
right to use the weapon of a federal class-action lawsuit to end the
government's 61-year-old ban on the herb aficionados prefer to call by its
Latin name, cannabis.

"This has to be the hottest issue since communism," said Hirsch, 59, in a
recent interview. Hirsch's lawsuit, filed last month in U.S. District
Court, lives up to his description as being a "grass-roots effort." Most of
the lawsuit's 128 pages are taken up with the life stories of 164
plaintiffs who contend they have found significant health benefits to
smoking marijuana.

Among the plaintiffs in the suit are Kiyoshi Kuromiya, 55, an AIDS patient
and activist from Philadelphia who says using marijuana helped him gain 40
pounds he had lost through "AIDS wasting syndrome," and Nancy Jamison, who
operates a Boston nonprofit corporation distributing food to the poor.

Jamison has used marijuana to combat the pain and symptoms of multiple
sclerosis, a crippling nerve disorder. Hirsch said the lawsuit had been two
years in the making, since he began advertising for plaintiffs at a
convention of the Washington-based Drug Policy Foundation, which has
lobbied to change U.S. drug laws.

The lawsuit has been assigned to U.S. District Judge Marvin Katz, a 15-year
veteran on the federal bench, and is awaiting a formal appearance by a
lawyer for the only defendant: the United States of America. First
Assistant U.S. Attorney Michael L. Levy said that the lawsuit would be
defended by lawyers for the Justice Department in Washington, and that
those lawyers were drafting a motion to dismiss the lawsuit.

Hirsch said he was not worried: "I can't wait to hear the official
response." Almost as unusual as the length of Hirsch's lawsuit is the
nature of its claim: It seeks, in classic constitutional parlance, the
"redress of grievances by the people," as it reads in the final clause of
the First Amendment, for the "government prohibition of therapeutic
cannabis." It was for that reason, Hirsch explained, that he purposely sued
the U.S. government as an entity rather than naming individual defendants
such as U.S. Attorney General Janet Reno, or Barry McCaffrey, the Clinton
administration's drug czar.

Unlike the government's ill-fated 13-year effort to ban the use of alcohol
except for medicinal purposes, enacted by the 18th Amendment and repealed
by the 21st in 1933, Hirsch noted that laws prohibiting marijuana were
imposed by Congress in the Controlled Substances Act of 1970 and in
subsequent federal regulations by the Justice Department and the
predecessor to the Drug Enforcement Administration.

"What we have now is prohibition without a constitutional amendment,"
Hirsch said. Although the First Amendment's "redress of grievances" phrase
is often interpreted to mean the people's right to petition Congress or the
president, Hirsch argues that the wording does not exclude a court
challenge.

"It is absolutely the responsibility of the courts to determine the
constitutionality of laws," Hirsch said. "This isn't a political question,
it isn't a legislative question, it isn't an executive question. It's a
judicial question."

Hirsch could be right. But it's the judicial answer that scares a lot of
others in the marijuana legalization movement. "Of course I'm concerned
about making bad law," said Keith Stroup, a lawyer and executive director
of the National Organization for the Reform of Marijuana Laws (NORML), the
Washington-based group that has campaigned to legalize cannabis since 1970.

Stroup said he and NORML lawyers were to obtain a copy of Hirsch's lawsuit
and would consider whether to support it, either as a "friend of the court"
or by providing expert witnesses if the case gets to trial. "We're not in
disagreement with [ Hirsch's ] goals," Stroup said.

"The real question is whether we're using limited resources wisely and in a
way that supports the social change we're seeking. "We're not in the 1970s
anymore. . . . The federal courts today are a much more conservative body,
and judges generally are unwilling to take on issues of social or political
change."

NORML has been down this route before. In 1972, it launched a suit
petitioning the DEA's predecessor, the Bureau of Narcotics and Dangerous
Drugs, to legalize cannabis. In 1988, after the prodding of a federal
appeals court and two years of hearings, Francis L. Young, then chief DEA
administrative law judge, concluded that the evidence "clearly shows that
marijuana has been accepted as capable of relieving the distress of great
numbers of very ill people, and doing so with safety under medical
supervision. It would be unreasonable, arbitrary, and capricious for DEA to
continue to stand between those sufferers and the benefits of this
substance."

The DEA director at the time, John Lawn, rejected Young's findings, a
ruling that was upheld when NORML appealed the decision to the U.S. Court
of Appeals for the District of Columbia.

At that point, Stroup said, NORML looked at the complexion of the U.S.
Supreme Court and decided not to appeal further, fearing it could wind up
with "bad law": binding Supreme Court precedent against legalizing
marijuana.

Since then, Stroup said, NORML has supported the two-year-old petition by
Jon Gettman, a former NORML president, and Trans High Corp., the publisher
of High Times Magazine, asking the DEA to end the marijuana prohibition.

DEA officials in December responded to the petition by asking scientists at
the Department of Health and Human Services to study whether marijuana and
its chemical components should be removed from its Schedule I list of most
dangerous drugs.

Hirsch, however, derides Stroup's and NORML's concerns about his lawsuit's
potential for creating "bad law," noting that the government has
essentially phased out its short-lived experiment of providing marijuana to
eligible patients who are seriously or terminally ill.

"That's the worst bull," Hirsch said, referring to fears of his lawsuit.
"How can we make an already repressive, bad law any worse if we go to
court?"

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